The Langa Court: Its distinctive character and legacy
| Jurisdiction | South Africa |
| Author | Theunis Roux |
| Published date | 15 August 2019 |
| Pages | 33-74 |
| Date | 15 August 2019 |
The Langa Court: Its distinctive character
and legacy
THEUNIS ROUX*
The composition of the South African Constitutional Court under its second
Chief Justice, Pius Langa, was virtually identical to that of the post-2004
Chaskalson Court. Despite that, this tribute to the late Chief Justice argues, the
two courts were different in several respects. For one, there was a marked
increase in the dissent rate on the Langa Court, which may be explained in
several ways, but which at the very least suggests that the judges were less
concerned than they had previously been about presenting a united front. The
Langa Court was also responsible for several doctrinal innovations, including
the expansion of the court’s ‘meaningful engagement’ approach to socio-
economic rights. Most of all, however, the Langa Court will be remembered
for its deft handling of the Zuma-Thint corruption cases. In case after case, the
court successfully resisted being drawn into the political leadership struggle
that dominated Langa’s term as Chief Justice. If there is still some uncertainty
over the Langa Court’s legacy,this has to do with the judges’ decision to lodge
a complaint against Cape High Court Judge John Hlophe for alleged interfer-
ence in their processes. Pending the full hearing of that complaint, questions
remain over the manner in which it was brought and the strategic wisdom of
starting a procedure whose impact on the court’s independence was likely to
be profound and yet at the same time difficult to control.
We are here today celebrating the life and work of a human rights lawyer
and political activist, part of which was spent serving on the South African
Constitutional Court – first as an ordinary judge, then as Deputy
President, then as Deputy Chief Justice and finally, for the last four and a
half years of his time on the court, as Chief Justice. Most of the other
chapters in this volume consider Pius Langa’s individual contribution: the
judgments he wrote and the areas of law they impacted. This contribution
focuses on something a little different: the collective identity of the court
that Langa led during his time as Chief Justice, the characteristic features
that give it that collective identity, and the enduring impact that the court
had on South African constitutionalism.
My reasons for taking this approach are both personal and scholarly. On
a personal level, focusing on the collective identity of the Langa Court is a
way – perhaps indirect, but nevertheless a way – of honouring and
* Professor of Law, University of New South Wales, Australia; BA (Hons) LLB (Cape
Town)PhD (Cantab).
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2015 Acta Juridica 33
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celebrating the man. As Langa himself might have said, we are not lone
rangers and our achievements are as much about the processes that we
facilitate and the human potential that we nurture as they are about our
own personal triumphs.
The second, more scholarly purpose behind this contribution is to
draw attention to the role of the Constitutional Court in national politics
– an approach that is well established in other countries but in South
Africa is still regarded with suspicion, by academic lawyers and political
scientists alike. For academic lawyers, the suspicion comes from a deeply
inculcated sense of law’s separateness from politics and the necessity of
keeping it that way. For political scientists, the suspicion comes from a
seeming consensus that the Constitutional Court is but a bit player in the
unfolding drama of South African democracy – its role determined by,
rather than determinative of, broader social and political processes. Both
of those views are mistaken, the contribution argues: the first because it
wrongly assumes that studying the role of the court in national politics
necessarily means treating it as a political actor; and the second because it
ignores the growing evidence in support of constitutional courts’ capacity
to play an active role in processes of democratic consolidation.
The contribution is divided into five sections. The first addresses some
of the theoretical issues arising from its focus on the Langa Court as a
collective actor. What exactly does it mean to analyse a court by reference
to its Chief Justice and what scholarly knowledge might we hope to build
through this kind of focus? The second section presents some statistical
data on the Langa Court, including some data on Langa’s personal
contribution as Chief Justice. By comparing these statistics to similar
statistics for the Chaskalson Court, this section provides the beginnings of
an answer to the question of whether the Langa Court was just an
extension of the late-stage Chaskalson Court or something qualitatively
different. The third section places the Langa Court in its political context
by giving a brief account of the leadership struggle between Thabo Mbeki
and Jacob Zuma and its impact on the South African judiciary, including
the Constitutional Court. Rather than thinking of this turbulent period in
the court’s history as a time of ‘lawfare’, it is argued, we need to examine
the extent to which the court was in fact politicised and what the judges’
role in resisting or contributing to this process was. The fourth section
considers the court’s role in national politics by looking at four themes
from the Langa Court’s jurisprudence, each of which tells us something
about how the judges sought to adapt the court’s doctrines to the political
context in which they were working. The fifth and final section of the
contribution considers the enduring impact of the Langa Court on South
African constitutionalism – the legacy of the title.
34 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA
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I CONSTITUTIONAL COURTSAS COLLECTIVE ACTORS
In the voluminous literature on the U.S. Supreme Court, the periodisa-
tion of the court by reference to its Chief Justices is common practice,
albeit seldom theorised or interrogated.
1
In what we might call the weaker
sense of this practice, identifying the court by reference to the name of its
presiding Chief Justice is simply a convenient way of demarcating a
particular period in the court’s institutional life. The period is then
stocked with happenings and developments – some of them doctrinal,
some of them sub-doctrinal (including shifts in modes of reasoning or
ideological orientation), and some of them describing the court’s chang-
ing role in national politics. On occasion, the court may be accorded a
measure of agency – made the active ingredient in the happenings and
developments recorded. Thus, for example, the Warren Court has been
described as ‘the first to attempt to redeem the promises of the Civil War
Amendments for black citizens’.
2
Even in such instances, however, the
usage may still be weak-form in the sense that the court is not treated as
having a collective identity that is larger than the sum of its individual
judicial parts. If the court is said to have actively done something, that is
simply because this is a convenient way of referring to the composite
effects of the actions of the individual judges, all of them acting according
to their own judicial lights.
In other instances, however, the ‘X Court’ terminology is used in a
stronger sense, one that suggests that the court was a deliberate, co-
ordinated actor in relation to the happening or development discussed.
Mark Tushnet, for example, argues that the Warren Court as it is
understood in popular consciousness really only came into existence in
1962, when Justices Byron White and Arthur Goldberg were appointed
to the court. Thereafter, ‘[t]here was a certain wilfulness to the Court’s
actions’in as much as the new liberal majority began to work the doctrinal
materials to produce results that fitted their overarching policy agenda.
3
While the liberal judges at no point entirely ignored the demands of
legality, Tushnet argues, they coordinated their activities to secure the
majorities that the implementation of their agenda required.
4
In turn, the
court was perceived in the public mind as a collective actor, one whose
identity was closely tied to that of the dominant liberal political coalition
1
See, for example, MV Tushnet (ed) The Warren Court in Historical and Political Perspective
(1993); MJ Horwitz The WarrenCourt and the Pursuit of Justice (1998); LA Power Jr. The Warren
Court and American Politics (2000); M Tushnet A Court Divided: The Rehnquist Court and the
Future of Constitutional Law (2005).
2
Horwitz (n 1) xi.
3
MV Tushnet ‘The WarrenCourt as history: an interpretation’ in Tushnet The WarrenCourt
(n 1) 1 at 10.
4
Tushnet (n 3) 10–12.
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THE LANGA COURT:ITS DISTINCTIVE CHARACTER AND LEGACY
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